Report to the Canadian Human Rights Commission on the Treatment of the Innu of Labrador by the Government of Canada by Professors Constance Backhouse and Donald McRae Faculty of Law, University of Ottawa

CONCLUSION 10:

Unless the Government acts to ensure that the Innu are able to take responsibility for their own affairs and are able to move to self-government, Canada is at risk of violating its international obligations under the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Draft Declaration on the Rights of Indigenous Peoples. Furthermore, in dealing with the children of the Innu communities of Davis Inlet and Sheshatshiu, Canada is obliged under the Convention on the Rights of the Child to have the well-being and best interests of the children as a primary consideration.

The Terms of Reference require us to “review the situation of Canada’s obligation to the Innu in light of its failure to provide treatment equal to that of other First Nations for the period 1949 to 2001.”

In 1993, the complaint of the Innu to the Canadian Human Rights Commission had included the request that they be compensated for the failure of the Government to recognize their status since 1949. The 1993 Report had indicated that while the payment of compensation would be appropriate, it would not remedy the wrong that had been suffered by the Innu as a result of the failure of the Government to carry out its fiduciary obligations. Instead, the Report stated that a real remedy in this case would be for the Government to address the problems faced by the Innu today and noted that the remedy had to be one that “ensures that the Innu are able to be in the economic, social and spiritual situation they would have been in if governmental responsibilities had been properly exercised and appropriate human rights standards met.”⁵⁰
Measured by that test, although the Government has now engaged in a relationship with the Innu that will lead to their being treated in the same way as other First Nations in Canada, it is a long way from remedying or even addressing issues that are key to the economic, social and spiritual future of the Innu. Indeed, as far as Innu culture is concerned, on key issues such as education in language and culture, and the preservation of unique cultural programs such as the outposts program, there are major deficiencies.
The Innu make further specific complaints. Without claiming that they should be compensated for precisely the amounts they would have received had they been properly recognized by the Government in 1949, they claim that even if they were to receive equivalent funding today, this would not recognize the disadvantage they have suffered from not receiving equivalent funding in the past. The Innu take the position that the federal claim of “general fairness in funding”⁵¹ can only be a reference to recent years and ignores the inequity of the past. Thus, in their view, funding to the Innu from the Government should include an appropriate amount of “catch-up funding.” The Innu claim that this is necessary to enable them to get to the level of programs and services that other First Nations have achieved, and to provide for the healing that is necessary after so many years of neglect.
In addition, on the issue of taxation, the Innu point out that they have been paying HST on goods and services. As non-profit organizations, the band councils are entitled to a remission of half of that amount, but that is not available for individuals. Once the registration and status processes have concluded, and reserves have been created, the problem will be solved as far as the future is concerned. But what of the past?
There seems to be no debate that the Innu have been financially disadvantaged in comparison to other First Nations by having to pay HST.⁵² The Government is apparently considering an order under section 23 of the Financial Administration Act to remit those taxes for the Innu going back to November 2000, the time at which a commitment was made to register the Innu as status Indians. It is not clear, however, why this date is the appropriate date for the remission order. In the 1994 Statement of Political Commitments the Government began the process of recognizing the Innu as Indians within the meaning of the Indian Act. That date seems more appropriate for a remission order. A remission order constitutes recognition that entitlement occurred at an earlier date than the date on which the Innu will obtain future taxation exemption. It could even be argued that entitlement to any benefit that would have flowed from recognition of the Innu as Indians within the meaning of the Indian Act should go back to 1949. However, even the Innu accept that there would be major practical difficulties in making taxation benefits retroactive to 1949.
In our view, the most appropriate date for the remission order is the date of the 1993 Report, 18 August 1993. That was the date when the Government was put formally on notice of what it in reality knew all along — that the Innu were Indians within the meaning of the Indian Act for whom the Government had fiduciary responsibilities. Any delays since that time in granting the Innu the benefits that flow from that fiduciary responsibility are delays attributable to the Government. Those delays should not disadvantage the Innu.
Moreover, in providing funding to the Innu, the Government cannot ignore the fact that it had a 50-year “holiday” from its obligations in respect of the Innu. This has to be taken into account in future funding provided to the Innu. Funding the Innu today on the basis of equivalency, without reference to the needs that result from the fact that equivalency was not provided in the past, does not constitute the remedy contemplated in the 1993 Report of ensuring that the Innu are put in the position they would have been in had government responsibilities been exercised properly in the past.
CONCLUSION 11:

Funding to the Innu should take account of the fact that they have been disadvantaged by the failure of the Government to exercise its fiduciary obligation to the Innu, and any remission order in respect of taxes should be dated from 18 August 1993.

The Terms of Reference invite us to “make such recommendations as are appropriate” on the basis of our findings. Our findings and conclusions are set out under each of the preceding sections. We now draw some more general conclusions and make certain recommendations.

At the time of the 1993 Report, the Government had not accepted that it had constitutional responsibility for the Innu as Indians within section 91(24) of the Constitution Act, 1867. That has now changed. The Government has acknowledged its constitutional responsibility and is acting accordingly. The real question, however, is whether this has made any practical difference to the situation of the Innu.

The first issue relates to the question of equivalency. In reality, this has always been the issue. If in 1949 the Innu had been treated like other Indians in Canada, they would have been treated in the same way as Indians for whom the Government had constitutional responsibility. They would, no doubt, have been granted status and reserves would have been created for them. The Innu would have been funded in the same way that other Indians in Canada are funded. This was the original intention of the Canadian and Newfoundland negotiators in establishing the Terms of Union but, as the 1993 Report pointed out, the relevant provisions were “pencilled out.”
Even today that equivalency has yet to be achieved. Although the Government initially seemed prepared to grant equivalency without going through the process of registration, in the end it insisted on a registration process before granting full equivalency, notwithstanding the fact that many, both inside and outside of the Government, considered registration a retrograde step. Within the Government, it appears that the precedent of granting tax benefits to people who were not registered was ultimately regarded as worse than the precedent created by registration.
For the Innu, it seemed that registration was the only option that the Government was prepared to offer to grant them equivalency. In the end, the Innu decided to take that option. While many Innu recognize that there are advantages and disadvantages to being placed under the Indian Act, some take the view that registration will allow them to decide on advantages and disadvantages themselves, which they would have been able to do had the Government fulfilled its responsibilities to them in 1949. In short, they are simply getting to where they should have been 50 years ago.
The registration issue appears to be a result of inflexibility and failed imagination. The Government could have taken the administrative, regulatory and (if necessary) legislative steps to grant the Innu equivalency without registration. It chose not to do so. Instead, it has required the Innu to embark on a process that simply postpones the granting of equivalency and that has had the effect of placing negotiations on self-government on indefinite hold.
There are, of course, issues such as reserve creation and band council powers that will be regularized through registration. But these matters could have been dealt with separately through self-government negotiations. That would appear to have been the position contemplated in the 24 November 1999 Agreement in Principle. A lack of flexibility has placed the Innu on a track that pushes self-government even further into the future. In short, the opportunity to recoup the time that was lost to the Innu during 50 years of federal failure to accept responsibility for the Innu has not been taken.
In terms of giving effect to the recommendations of the 1993 Report, although the Government has not yet granted to the Innu the programs, benefits and services to which status on-reserve Indian people are entitled, there is now a process in place that will result in their getting that equivalency. The cost of doing this is postponement of self-government.
Furthermore, it is not clear that the federal or provincial governments see self-government for the Innu in the foreseeable future. There is a strong sense among some officials that the Innu do not have the capacity to engage in self-government or to manage education or health services. Some consider that a period of operating under the Indian Act will be a valuable “capacity-developing” experience for the Innu. Under this view, self-government is postponed even further into the future, perhaps indefinitely.
The move to self-government was a principal recommendation of the 1993 Report. Self-government was recognized by the Royal Commission on Aboriginal Peoples to be a step of vital importance to Aboriginal peoples more generally. Rapid action by the Government towards Innu self-government was a way in which the Government could have made up for its past failure in its fiduciary duty. Unfortunately, this opportunity of forging a new and more creative relationship with the Innu has not been taken.
The pace of self-government negotiations has simply been too slow. Nine years after the release of the 1993 Report, one might have assumed that the process would be complete, or at the very least close to completion. Instead, negotiations have halted and no resolution is in sight. There is no justification for letting another eight years trickle by without results. In our view, a strict time-line is overdue. Given the eight years that have elapsed so far, and that some progress has been made already, a period of five more years would seem more than reasonable to complete self-government negotiations.
RECOMMENDATION 1:

That the Government immediately resume self-government negotiations with the Innu, and that it complete such negotiations within the next five years.
In doing this, the Government should not abandon registration, which is now well underway. Rather, it should adapt the registration process into a self-government process in order to avoid creating institutions for governance under the Indian Act that will have to be changed, altered or abolished as a result of self-government.
Innu Education and Health

The second issue relates to the question of whether the Government’s assumption of its responsibilities has led to any improvement in the lives of the Innu. In 1993, outside the area of health, there were few federal officials dealing with issues affecting the Innu or with any experience of the communities of Sheshatshiu and Davis Inlet. Today the situation is remarkably different. There are officials in Ottawa in DIAND and Health Canada and in the DIAND regional office in Amherst who are dealing directly with Innu issues and who have spent time in the communities. There are DIAND and Health Canada officials located in Goose Bay. There also appears to be a marked change of attitude on the part of many government officials, who appear to be much more knowledgeable about Aboriginal claims, traditions and culture than their predecessors. By comparison with 1993, there is now substantial federal activity on Innu issues. The number of “main tables” and “side tables” for negotiating issues relating to registration, land claims, health and relocation seems to be growing exponentially. Much appears to be happening.

But what does it all lead to? Have things really changed? Two issues will be considered — education and health.

At the time that the 1993 Report was completed the state of education in the Innu communities was little short of disastrous. Attendance at schools was irregular, the drop-out rate was high and few Innu ever completed high school. Today the situation is generally regarded as the same, if not worse. Attendance at the high school level can be as low as 10% — and not always the same 10%. Students who do stay in school suspect that their educational level is not the same as those at the same grade in other schools in Newfoundland and Labrador. Remuneration of teachers in the provincial system is structured in such a way that the Innu schools are unlikely to attract experienced teachers, and once they gain experience, they are likely to leave. Some years, it is difficult even to obtain a full complement of teachers. Recently, the school in Davis Inlet was unable to open at the beginning of the school year because of a lack of teachers.

The schools in both Sheshatshiu and Davis Inlet are in extremely poor physical condition. The school in Davis Inlet has had to be closed on at least one occasion because leaking oil had caused an environmental hazard. There is agreement that it is necessary to construct a new school in Sheshatshiu, but there is no consensus as to who will fund the construction, nor whether the new school will be built to federal or provincial standards. No one claims that the schools provide any kind of effective mechanism for conserving and revitalizing Innu language and culture. Some Innu parents have lost faith in the capacity of the schools to offer education either in the Innu language and culture or in the basic skills offered under the provincial curriculum. A number of Sheshatshiu parents have responded by sending their children across the bridge to the school in North West River.
Education remains in the hands of the Province, and discussions between the federal and provincial governments appear to contemplate that even after registration the Province will continue to provide education services to the Innu under an agreement with the Government. In short, the financial arrangement will change but there will be no fundamental change in what is being delivered.
The inability to control education in their communities has been an issue for the Innu for many years. They express frustration with the fact they have no control over curriculum and that Innu language and culture, generally provided by teaching assistants and not fully qualified teachers, lose out if anything has to be sacrificed. Given that the preservation of Innu-aimun is at a critical juncture, Innu control over Innu education becomes increasingly urgent. Nor have the schools been sympathetic to Innu who wish to take their children into the country for extended periods. Alternate educational programs initiated by the Innu, one of the most promising of which was conceived in the fall of 2001, tend to fall through complex bureaucratic regulations and priority funding limitations.⁵³
The Innu consider that they should be in a position to manage education, to engage teachers and to have a say in the curriculum. In Innu hands, the schools would give priority to Innu-aimun and would give central focus to culturally appropriate education. At the same time, the Innu are not unrealistic about the growing connections between their community and the outside world. They recognize that their children are being educated in a broader provincial and national context. They wish to offer a curriculum that would make their children’s education portable, so they could move to other schools within the Newfoundland and Labrador school system. The situation in Conne River is often cited as an example in which the band is responsible for schooling in accordance with provincial standards.

Paragraph 2 of the 24 November 1999 Agreement in Principle provided that “Canada and the Province will work together with the Innu to transfer control for [education] programs to the Innu.” This has not happened. Federal officials say that discussions on devolution of control over education can take place when the Innu come up with a plan, an odd requirement given that there is no alternative governmental plan except to continue a system that patently does not work. In fact, there is a widespread view among federal and provincial officials that the Innu do not have the capacity to manage education in their communities. Some officials suggest that the Innu will not be able to take responsibility for education until they can provide that education themselves. If it is expected that the Innu are to come up with a plan to solve the problems of Innu education — something that the Government and the Province have been unable to do — before they are given responsibility for Innu education, then this is tantamount to a refusal to devolve education to the Innu.

In the immediate term, after the Innu are registered as status Indians, the schools in the Innu communities will continue under the Newfoundland schooling system. Thus, although relocation will provide the Mushuau Innu with excellent physical facilities for schooling, the delivery and content of education will not change in either community as a result of registration.

It is difficult to see how the continuation of a system that clearly does not work will improve education in the Innu communities. And it is difficult to understand why giving the Innu the opportunity to take responsibility for the education of their children could make anything worse.

The situation in respect of health is more complex. There is a longer history of federal involvement in health issues in the two communities. Yet some parallels can be drawn with education. At the time of the 1993 Report there was a crisis of children gas sniffing in Davis Inlet that drew national and international attention. Some children were taken away from the community for treatment and then returned. Later there were reports that several of those children had returned to gas sniffing.

In November 2000, there was a crisis of gas sniffing by children in both Sheshatshiu and Davis Inlet that received national and international attention. Children were removed from both communities and provided with treatment. Subsequently there were reports that children who had received treatment had returned to their communities and had continued gas sniffing.
There are, of course, many differences between these two incidents, but the overall impression remains the same. Notwithstanding the substantial efforts that have been made to deal with health and social issues in the Innu communities, on the surface it appears that fundamentally little has changed.
In fact, much has changed. In the incident in November 2000 it was the Innu leadership in Sheshatshiu that took the initiative and called on the provincial authorities to apprehend the children in that community under relevant child welfare laws. In Davis Inlet the leadership took the matter to Health Canada and the children were dealt with under voluntary care arrangements. The children from Sheshatshiu were treated in Goose Bay and the children from Davis Inlet were sent to Grace Hospital in St. John’s.⁵⁴ Some children remain in treatment.
The November 2000 incident demonstrates the jurisdictional nightmare that exists in respect of Innu health. The differing arrangements with the two communities led to serious difficulties over which level of government should be paying for which service. Health is a provincial responsibility, exercised in respect of the Innu through the provincial Health Labrador Corporation. Health Canada nevertheless funds health care programs and DIAND provides funding for health as well. The Innu manage health issues through health commissions in each of the communities. Coordination between these groups is a major problem. Within the Government an interdepartmental committee was established at the behest of the Chief Federal Negotiator for Labrador Innu Files to try to bring some coordination at the federal level. This has resulted in better communication but it has not prevented each department from carrying out its mandate as it sees fit, and friction between DIAND and Health Canada continues. The problem between the two departments is described by officials as a “national problem.”
There is no doubt that the resources devoted by the Government to issues of health in the Innu communities are significantly greater today than in 1993. The Innu themselves speak favourably of the role played by Health Canada. Yet there is still the concern that this has not resulted in a corresponding improvement in health in the communities. As Innu Nation President Peter Penashue observed at a circumpolar health conference in 1994:,“The arrival of an elaborate health care system among the Innu has coincided with a rapid worsening of Innu health.” President Penashue did not see this as a matter of cause and effect. Rather he considered that Innu health and ill-health were determined largely by factors such as social and economic considerations, rather than the health care system itself. He suggested that improvement in Innu health could only occur alongside the development of healthy socio-economic and cultural systems. Under this view, control of the Innu over their own lives becomes critical to Innu health.
The view expressed by President Penashue is widely shared among the Innu, who see experts with experience with problems in other communities, including other Aboriginal communities, being brought in to consider Innu problems. What is lacking, from the Innu perspective, is experience with the Innu themselves. There seems widespread consensus among the Innu that the programs that work best for them are the family healing programs, in which families go to the country and seek to come to terms with alcohol, gas sniffing and other problems of social dysfunction. However, on the return to the communities many of the problems resurface, and at the present there is little to provide the essential in-community follow-up. Proposals to link cultural awareness and health, like the outposts program, tend to fall through the funding gaps.
The Innu also express concern that even after they become registered they will not gain any further autonomy over health care. Discussions between the federal and provincial governments over the role to be assigned to the Health Labrador Corporation after the Innu are registered, and the belief among federal and provincial officials that the Innu do not have the capacity to manage health care, suggest that the Innu are correct in their perception. In November 2001, the DIAND regional office confirmed to the Chiefs of Sheshatshiu and Davis Inlet that the Government would enter into an agreement with the Province and the Health Labrador Corporation for the provision of child and family services to the Innu by the Health Labrador Corporation.⁵⁵ Federal officials also express concern over accountability in the management of funds. As mentioned earlier, Innu finances are currently under third-party management.
As in the case of education, it is difficult to see how the Government can justify continuation of the present arrangements. They are currently managing crises in Innu health but have not been successful in addressing the underlying problems. They are not responding to Innu requests that the Innu be allowed to take more responsibility for their health. This is not to suggest that one should ignore the substantial efforts by both levels of government on matters relating to Innu health or to question the well-meaning intentions of those involved in providing programs and funding. It is simply to say that in light of the history of health in the communities, a point has been reached where the request of the Innu to take responsibility themselves for health care — and to be able to make their own mistakes — becomes compelling.
During our discussions we heard much talk of “capacity building” but saw little evidence of real training, which is what the term “capacity building” denotes. The role of the federal and provincial governments should be to provide training that will allow the Innu to exercise their responsibilities in respect of education and health effectively. The assumption that the Innu do not have the capacity to manage education and health in their communities, and that if they were granted that responsibility they would fail, is easy to make given the educational, health and management experience of the Innu compared with the vast resources of the federal and provincial governments. But, as the Innu point out, the incentive for them not to fail is enormous. It is the education and health of their own people that are at stake. And, at least in the education field, failure is what already exists. The bar for measuring success could hardly be lower.
What is needed, therefore, is a reversal of relationship. Instead of the Government and the Province taking responsibility for education and health in cooperation and consultation with the Innu, the Innu need to take responsibility for education and health in cooperation and consultation with federal and provincial authorities. This is not a fundamental change in direction, but simply a shift in the allocation of control.
Furthermore, as with the need for a time-line on negotiations for self-government, there is a parallel need to impose deadlines on the process of devolution of responsibility for education and health. The Government and the Province have begun to move in the right direction, but nine years after the 1993 Report, there is insufficient progress to show for it. It should take no more than another two years to complete negotiations to devolve responsibility to the Innu.